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Native title: implications for planners and valuers

By Ed Wensing*

Planners and valuers in Australia have most often dealt with title to land under post colonial legislation, mainly freehold and leasehold title, whether in Aboriginal or non Aboriginal ownership. The concept of native title under common law in Australia was first recognised in the High Court decision in the case of Mabo vs. the State of Queensland (No. 2) (1992) 175 CLR1.

The judgement overturned the principle of terra nullius (a land belonging to no one) and recognised that in Australia (like other British colonies) the following two tenure systems exist.

• the introduced colonial system - from which freehold and leasehold title flow
• a pre existing indigenous system - from which indigenous property rights derive.

Some basic understandings about native title

It is important to understand that native title is not a new type of land grant by governments to Aboriginal and Torres Strait Islander people on the basis of race. These are existing rights that have previously not been recognised in Australian common law.

Native title pre exists European settlement of Australia and may continue to exist in areas where it has not been extinguished and indigenous people have maintained their connection with the land and/or waters in question according to traditional law and custom.

As with familiar tenures - freehold and leasehold - it comprises rights and interests. Native title is most commonly a communal title, and the rights under it are communal rights. Contrary to popular belief, the Native Title Act 1993 does not create native title rights. Native title rights do not flow from the Crown, and therefore can never be granted through Government legislation (unlike land rights).

The Act provides for the recognition and protection of native title - an existing common law right - by providing processes to facilitate its recognition and ensure it receives legal protection. The recognition of native title cannot displace other existing legal rights and interests in the same area.

Native title may co exist with other legal rights and interests, as per the Wik decision of the High Court. Planners, valuers and land economists should always be aware of the possibility that native title may exist in certain circumstances and in areas where it has not been extinguished, regardless of whether there is currently a native title application or determination to indicate its presence. In other words, native title may currently exist in areas throughout Australia where it has survived, even though its existence in particular areas and/or the identity of possible native title holders are currently unknown to decision making authorities.

As a result of the Mabo judgement, the Federal Government introduced the Native Title Act 1993 to provide for the recognition and protection of native title to the extent recognised by the common law of Australia. Native title law in Australia is still in its infancy and appropriate guidelines on how to take native title into account remain a moving target.

Nevertheless, the Royal Australian Planning Institute (RAPI) and the Australian Institute of Valuers and Land Economists (AIVLE) have joined together in producing a paper that provides members with the known basic facts of native title. It sets out the procedures and mechanisms available under the Native Title Act 1993 that can be used to establish whether or not native title is a consideration that needs to be taken into account in any planning or land valuation task.

*Ed Wensing is the National Policy Director of RAPI. The views he expresses in this article are personal.

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